Kan. Admin. Regs. § 28-73-7 - Restrictions, prohibitions, and zoning requirements
(a) Restrictions,
prohibitions, and zoning requirements placed on an eligible property by a
local, state, or federal government may be approved by the secretary in lieu of
or in addition to one or more environmental use controls if the restriction,
prohibition, or zoning requirement meets the following conditions:
(1) Has been legally established;
(2) is enforceable by a governmental entity;
and
(3) is determined by the
secretary to be in effect and applicable to the environmental contamination for
which a particular environmental use control is otherwise considered to be a
necessary component of an environmental use control agreement for the eligible
property.
(b) Use of
these restrictions, prohibitions, or zoning requirements in lieu of or in
addition to an environmental use control may be considered in either of the
following cases:
(1) For contamination that
is contained exclusively within the boundaries of an eligible property; or
(2) for contamination that is both
contained within and extends beyond the boundaries of an eligible property if
the local, state, or federal governmental restriction, prohibition, or zoning
requirement is in effect and applies to all of the following areas:
(A) All of those contaminated areas that are
beyond the boundary of the eligible property; and
(B) All of those areas surrounding or
extending beyond the contaminated areas for a distance that is determined by
the secretary to be necessary to ensure the protection of public health and
safety and the environment.
(c) Each applicant submitting an application
for an environmental use control agreement shall submit to the secretary a copy
of any existing local, state, or federal governmental restrictions,
prohibitions, or zoning requirements that are proposed for inclusion in the
environmental use control agreement in lieu of or in addition to one or more of
the proposed environmental use controls. Each applicant shall submit for the
secretary's review documentation sufficient to demonstrate the applicant's
compliance with each restriction, prohibition, or zoning requirement that is
enforceable by a local, state, or federal governmental entity.
(d) If the secretary approves the inclusion
of governmental restrictions, prohibitions, or zoning requirements in the
environmental use control agreement, the agreement shall reference the
appropriate local, state, or federal restriction, prohibition, or zoning
requirement and shall identify the governmental unit establishing these
requirements.
(e) Each owner who
enters into an environmental use control agreement that incorporates local,
state, or federal governmental restrictions, prohibitions, or zoning
requirements in lieu of or in addition to one or more environmental use
controls shall remain subject to all other applicable requirements of the act
and these regulations.
(f) An
environmental use control agreement that incorporates local, state, or federal
governmental restrictions, prohibitions, or zoning requirements shall be
considered not to be effectively implemented and shall be subject to
appropriate enforcement action in accordance with
K.S.A. 65-1,229, and amendments thereto, if the
secretary determines that both of the following conditions exist:
(1) The local, state, or federal governmental
restrictions, prohibitions, or zoning requirements have been modified by the
governmental entity after the environmental use control agreement was approved
by the secretary.
(2) These
modifications reduce the effectiveness of the environmental use control
agreement to the extent that public health and safety and the environment are
not protected adequately.
Notes
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